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[1993] ZASCA 69
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S v Mokoena (78/91) [1993] ZASCA 69 (25 May 1993)
CASE
NO 78/91
H v N
IN THE
SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the
matter between:
DAVID
MOKOENA
APPELLANT
and
THE
STATE
RESPONDENT
CORAM
:
BOTHA,
KUMLEBEN JJA, et
HOWIE
AJA
DATE HEARD
:
6
MAY 1993
DATE
DELIVERED
: 25 MAY 1993
J U D G
M E N T
KUMLEBEN,
JA:
The
appellant stood trial in the East and South
Eastern
Circuit Local Division of the Supreme Court on
seven
counts. Three were murder charges, the details of
2
which are
as follows:
Count
1
: The murder of Anna Mashiane
("Anna")
on or about 26 September 1987 at or
near the farm Keeromplaas,
district Middelburg.
Count
2
: The murder of
Linah Khaliphayo
("Linah")
during the period May - July 1988 at or near the farm Uitkyk,
district Middelburg.
Count 4
: The murder of Sophia
Simelane
("Sophia") on
or about 4 April 1989 also at or
near the farm uitkyk. The
appellant pleaded not guilty on all counts. The
court
(Curlewis J sitting with two assessors) found the
appellant
guilty on all of them as charged. The death penalty was imposed in
respect of each of the convictions of murder. They,
and the
consequent
sentences, are
before us on appeal in terms of s 316A(1)
of the Criminal
Procedure Act, no 51 of 1977 (the
3
"Act").
I ought to mention that the other counts in the
indictment
were two of robbery in conjunction with the
alleged
murders of Linah and Sophia respectively (counts
3
and 5) and two other counts, one of robbery and one of
housebreaking
with intent to steal and theft (counts 6
and
7 respectively) committed on 11 December 1989 on the
farm
Wonderhoek, district Middelburg.
The
key witness for the State was Liesbet Majona
("Liesbet").
At all relevant times she and the
appellant
were living together as husband and wife. Her
testimony,
which to an extent incriminated the appellant
on
each charge of murder, included evidence of certain
items
of clothing and other things brought to their home
by
the appellant from time to time; statements made to
her
by the appellant; and conduct on his part that she observed. The
other lay State witnesses were called primarily to relate the
movements of the three victims
4
before
each was killed and to identify certain of their
possessions.
The
court approached the evidence of Liesbet with caution and found her
to be a satisfactory witness. It
was
mindful of the fact that she perhaps knew more about
the
appellant's possible involvement in the offences
than
she was prepared to admit. She was, for instance,
probably
aware of the fact that certain of the
articles
brought to their home had been illicitly
acquired by the
appellant. But it is as probable that she was not in a position to
challenge him in this
regard or
to dissociate herself from conduct on his part
which
aroused suspicion. Notwithstanding this apparent
defect
in her evidence, I do not consider that the trial
court erred
in accepting it. The court likewise found the evidence of the State
to be acceptable with one
qualification
as regards the lay witnesses, though not a
5
material
one: In many instances a specific date of an
occurrence
was put to a witness by the prosecutor. It
was
then affirmed when in the nature of things such
detailed
recollection, and perhaps the identification of
days
with reference to the calendar, could hardly have
been
expected of the witnesses concerned. In the
circumstances
when dealing with their evidence I shall
omit
any reference to a particular date which was, as it
were, put
in the mouth of the witness.
The
appellant gave evidence during the course of a
trial-within-a-trial
to decide on the admissibility of a
statement
made by him (to which I shall in due course
refer)
and on the merits in rebuttal of the State case.
On
both occasions he proved to be thoroughly untruthful.
Since
this was not disputed on appeal there is no need
to
refer to any of the many examples of his mendacity.
6
The
evidence admitted or tendered by the State on
each count can
be thus summarized.
As
regards count 1, it was formally admitted that
Anna died from
an unknown cause on 26 September 1987.
For
a period before that date she had been living on the same farm as
Liesbet and the appellant, where the latter
was
employed. Anna was confronted by the farmer's wife
about
some peaches which were said to have been stolen.
Her
explanation was that the appellant had given them to
her.
When the appellant learnt of this, he told Liesbet
that
"at the place where he meets up with Anna no grass
will
grow." (Liesbet declined to explain this figure of
speech
but it clearly had a threatening and sinister
meaning.)
One afternoon Anna left her home telling her
younger
sister, the witness Rose Mashiane, that she was going on a visit to
some plots in the area. she had two
blankets in her possession
when she left. She was not
7
seen
alive again. Liesbet said that the appellant came
home
one night bringing with him two blankets, a fowl
and
a crate containing eggs. His clothes were covered
with
blood. At his request she boiled some water with
which
he cleaned his blood-stained knife. The blood,
according
to him, came from a beast that had been
slaughtered
and the blankets he said he had bought at a
shop. One of them
(exhibit 1) was convincingly
identified
by Rose Mashiane as one that Anna had with her when she left home.
This blanket remained at the
appellant's
home and was handed to the investigating
officer, Detective
Sergeant Mahole. Rose Mashiane
confirmed
that Anna's body was later found lying under
some
trees near a footpath on the adjoining farm and she
was able
to identify it.
Turning
to count 2, Linah's daughter, Susan Nkosi,
remembers
an occasion when Linah left home with some
aprons she had
made. She planned to sell them on the
8
farm
Uitkyk. She failed to return. Susan subsequently
identified
the aprons, a purple purse, a black bag and a
carry
bag as belonging to her mother. These aprons and
the
other things were brought home by the appellant. He
told
Liesbet that he had bought the aprons for her. At
some later
stage she was walking in the veld with a friend on Uitkyk when they
came upon the body of an unknown woman lying in a
river. She reported
this to
the appellant and
offered to take him there. He refused
to
accompany her but the next morning suggested that she
should
report the matter. She told her employer who summoned the police. The
defence admitted that Linah died during the period
May 1988 to July
1988; that asphyxiation, due to a ligature being applied to her neck,
caused her death. The post-mortem examination
conducted
on 4 August 1988 confirmed that the body had
lain in water
before it was found.
9
It
was formally admitted that Sophia, a seventeen
year
old girl, died on 7 April 1989 also as a result of strangulation. Her
naked body was found in a muddy area
on
the farm Uitkyk. There were signs of a struggle at the scene and
indications that the person or body had been dragged to where
it was
discovered. At the pre
trial
proceedings in the magistrate's court in terms of
s
119 of the Act the appellant pleaded guilty to this
charge.
In answer to questions pursuant to this plea he
said:
"Wat
ek kan onthou is dat ek en Sophia wel in
'n
bakleiery betrokke geraak het. Sy het my
eers
met 'n vuis geslaan. Ek het haar toe gepooitjie. Ek het ook neergeval
en sy het toe bo-op my kom sit. Ons het toe gerol. Ek
het
toe bo-op haar gesit en haar verwurg. Sy
het toe op die toneel
beswyk."
In reply
to the question whether he had intended to kill
her he
said:
"Nee
dit was nie my opset nie. Ek wou haar
net
so bietjie te lyf gegaan het sodat sy my
more kon respekteer."
10
(In
the light of these answers a plea of not guilty was
entered.)
On
what must have been the same morning Liesbet happened
to
see the appellant in the area where Sophia's body was subsequently
found. The appellant returned home at about
noon
on that day although he ought to have remained at
work. He had
fresh scratch marks in the region of his
throat.
His explanation was that they arose during the
course of a
fight at a gambling school. She also
noticed
that there was mud on his knees and elbows and
and
some signs of blood. He produced R 20 and a watch.
During
the afternoon he left home and returned at night
with a pair
of canvas shoes. These, the watch and the
shoes,
were found at the appellant's home and identified
as belonging
to Sophia.
As
I have said, the disputed issue resulting in a
trial-within-a-trial
was whether a statement written out
11
by the
appellant after his arrest ought to have been
received in evidence. This statement, a lengthy one, is
disjointed and rambling. As regards count 1, the death
of Anna, it is exculpatory. In it the appellant states
that
Liesbet suspected Anna of having a relationship
with him, that she provoked Anna into fighting with her
and that Liesbet fatally stabbed Anna in his presence.
As regards count 2, though his statement does not refer
to Linah by name, he says sufficient to make it clear
that she is the person to whom he is referring.
Liesbet, according to him, encouraged him to rob Linah
of the
clothing she had for sale. He killed her by
felling her with an axe and at night threw her body into
a
river. He prefaced this explanation of how she met
her death by stating:
"Ek
het dit gedoen, maar nie geweet wat ek
doen.
Ek vra nog my daaroor maar kan nie sien
wat ek gedoen het
nie."
12
This
statement was written out by the appellant and
handed
to the investigating officer, Detective Sergeant
Mahole,
and was therefore made to a "peace officer" as
defined in s 1 of the Act. Thus, if the statement
amounts
to a confession within the meaning of proviso
(a)
to s 217 (1), it is inadmissible since it was not
confirmed
before a magistrate or justice of the peace.
Whatever
the meaning the word "confession" in
general usage may bear, a statement to be a confession
in terms of this section must amount to "an unequivocal
acknowledgment of ... guilt, the equivalent of a plea
of guilty before a court of law." (
R
v Becker
1929 A.D
167
at 171.) In
S v
Yende
1987(3) S.A 367
this court,
after
reviewing certain aspects of the application of
this test, at 375 B-E said:
"Ten
einde te besluit of dit op 'n bekentenis
neerkom, moet daar na die appellant se
verklaring
in die geheel gekyk word. (S v
Msweli
(
supra
op 1163F);
S v
Motlouncr
1970 (3)
13
SA 547(T)
op 549B;
S v Mhlanqu
1972 (3) 8A
679(N)
op 682 A-B:
S v
Potqieter
1983 (4) SA
270
(N) op 274A.) In die verband, moet daar
nie
net gelet word op wat in die verklaring staan nie, maar ook wat
noodwendig daardeur
geimpliseer
word. (Vgl
S v Msweli
(
supra
op
1164B);
S
v Mbatha
1985 (2) SA
26
(D) op 29F.)
Indien
die inhoud van 'n verklaring nie
uitdruklik
al die elemente van die misdaad erken of alle verweersgronde uitsluit
nie,
maar dit by
noodwendige implikasie wel doen,
kom
die verklaring op 'n bekentenis neer. Of
'n
verklaring, hetsy alleenstaande of tesame
met
sodanige omringende omstandighede wat
regtens
in aanmerking geneem kan word, vatbaar
is
vir 'n noodwendige implikasie sal bepaal
moet
word volgens die meriete van elke
afsonderlike geval. Bestaan
daar twyfel in die verband is die verklaring nie 'n
bekentenis
nie want uit die aard van die saak
bevat
dit dan nie 'n onomwonde erkenning van
skuld
nie. (Kyk
Schmidt
(op cit 526).)"
In
applying this test to the statement in the present
case,
the qualification or explanation to which I have
referred
is significant. The most reasonable and
acceptable
meaning to attach to it is that the appellant
acted
unconsciously or involuntarily and is therefore
not
criminally accountable for his conduct resulting in
14
the
death of Linah. At the very least one must
entertain a doubt
whether his statement is a
"confession" as envisaged by s 217(1) (a) and it then
follows on the authority cited that the proviso is
inapplicable. In the course of his judgment in
Yende
's
case Smalberger JA held at 374 E - F that in deciding
whether a statement amounts to a confession the test is
an
objective one. Nevertheless the intention of the
person making the statement was said to be an element of
the surrounding circumstances which can be taken into
account:
"Soos
Schmidt
ook verder daarop wys, beteken die
toepassing
van 'n objektiewe maatstaf egter nie dat alle subjektiewe faktore
buite rekening gelaat moet
word
nie. 'n Verklaarder se gemoedstoestand of
bedoeling
sal soms in aanmerking geneem moet word
as
een van die omringende omstandighede waarvolgens
die
objektiewe betekenis van sy verklaring vasgestel kan word."
In this
regard it is noteworthy that his statement in
reference
to count 1 is wholly exulpatory; that he does
15
not
confess his guilt on count 4 although he
subsequently
pleaded guilty to this charge; and that in
contrast
he pleaded not guilty on count 2 which is not
what one might
have expected if his statement was
intended
to amount to an admission of guilt in respect
of
this count. These are further considerations which
lend
some support - I put it no higher than that - to
the
inference that the statement relating to the death
of
Linah was not an unequivocal admission of guilt. The
court
a quo
was therefore correct in admitting the
statement.
Mr
Snyman, who appeared for the appellant, argued
that
it had not been proved that the bodies found were
those
of the persons named in the indictment or that the
appellant
was responsible for their deaths. This
submission
is without merit. Anna's body was identified
16
by
her sister Rose at the place where it lay and it was
formally
admitted that she is the person to whom the
indictment
refers. The evidence of the appellant in his
statement that he
killed the person who was selling aprons and the post-mortem finding
that the body had
been lying in
water establishes beyond any doubt that
Linah was the person
to whom he was referring and on
whom
the post-mortem examination was conducted. In fact it was formally
admitted that Linah is the person named
in the indictment and
the subject of the post-mortem examination. There is ample evidence
proving, albeit circumstantially, that
it was the appellant who was
responsible for the death of
Anna and Linah. As regards
count 4, the s 119 statement
conclusively proved his involvement and the identity of this
deceased. The
appellant did not
dispute the recording of the answers
he
gave in these proceedings, which have been quoted,
save to
deny that he said: "Sy het toe op die toneel
17
beswyk."
According to him, what he said - and what
ought
to have been interpreted and recorded - was that
she
was still breathing when he left her. However, the interpreter
concerned was called and said that he had
accurately
translated what was said at the s 119
proceedings.
In
his evidence the appellant gave a more detailed
-and
in certain respects contradictory - account of his
encounter
with Sophia. He said that they were lovers
and
that they happened to meet on the day in question.
She
grabbed him and accused him of giving all his money
to
Liesbet. They grappled and fell to the ground. She
started
to throttle him. He gradually gained the upper
hand
and climbed on top of her. He in turn throttled
her,
but desisted and left her when she was still
breathing. That
morning he had drunk two litres of beer. When he fought with her, he
said, he had no
18
intention
of killing her. These allegations stand
uncontradicted
by any direct evidence. Thus, although
his
testimony in the witness box on two occasions, and certain aspects of
his statement, demonstrated his
manifest
untruthfulness, one must nevertheless consider
whether
this account of what took place could reasonably
possibly be
true. In my view it cannot satisfy this test. Under cross-examination
his evidence on being allegedly under the influence
of liquor proved
contradictory and generally lamentable. Nor can his evidence be
accepted that he was provoked and that
Sophia
was the aggressor. It is obvious from a
photograph
of her body that she could never have been
a
match for him physically. This assertion that she had
provoked
him is inconsistent with the answer given in
the
s 119 proceedings in which he said that his reason
for
assaulting her was to make her more respectful
towards
him. In all probability he sustained the
19
scratch
marks on his throat when he sat, or perhaps lay,
upon
her. He furnishes, one notes, no explanation for
the fact that
the body was found naked at the spot
to
which it had been dragged, or for his muddy condition
when
he returned home with the R 20 and the watch. In
these
circumstances one has no hesitation in rejecting
his account
of what took place. The inescapable
inference
is that he intended to kill her.
Similarly,
as regards the other two counts an
intention to kill was
satisfactorily proved. In the
case
of Anna, it is unlikely that the motive was robbery
bearing
in mind that only one of the blankets brought
home
was identified as belonging to her. But his stated intention of
killing her because she had implicated him
in
the theft of the peaches must be taken at face value
and
was no doubt the motive or main motive. As regards
count 2,
the inescapable inference is that Linah was
20
killed in
the course of robbing her.
For
these reasons I am satified that the appellant
was
correctly convicted on the murder charges.
On
the question of sentence this court is enjoined
to
consider, taking the aggravating and any mitigatory
factors
into account, whether the death sentence is the only proper one. The
appellant did not give evidence in
extenuation
and his counsel was hard pressed to put
forward any mitigating
considerations. He simply
referred
to the age of the appellant (48 years) and to the fact that he had
received no formal schooling. The
aggravating
ones are self-evident and overwhelming. His
previous
convictions confirm that he is a hardened
criminal.
They include - during the period from 1975 to
1984
- three of theft, four of housebreaking with intent
to
steal and theft, two of rape and one of robbery (and
21
one
deduces that the rape and robbery were committed
conjunctively).
The attacks were brutally carried out
on
defenceless women with a self-serving motive. With
this
criminal record the prospects of his rehabilitation
during a
lengthy period of imprisonment are meagre.
This
consideration is in any event outweighed by the
retributive
element of punishment which in this case
calls for the
confirmation of the death penalties imposed.
The
appeal is dismissed and the sentences on counts
1, 2 and 4 are
confirmed.
KUMLEBEN
JA
BOTHA JA )
STEM
SAAM
HOWIE AJA )